A Written Constitution?
Why It Matters
The process of writing down a set of rules or conventions which have been previously unwritten will necessarily involve some editorial input. This may, either deliberately or unintentionally involve the introduction of changes into the way in which we are governed.
The Essentials
1.
A constitution is a set of rules regulating the powers of a country’s government and the rights and duties of its citizens.
2.
There is currently no written constitution in Britain. Our political system is instead governed by a collection of laws and established practices known as conventions which are not collected in any one source.
3.
Britain, along with Israel and New Zealand, is one of only 3 democracies in the world not to have a written constitution.
4.
There is considerable debate as to whether a written constitution ought to be introduced in order to align the UK with other nations, or whether the current system should be retained given that it has functioned more or less satisfactorily for hundreds of years.
5.
The fact that the British constitution is not written down in a single document does not mean that it does not exist. It is made up of a number of different written documents (including Magna Carta, the Bill of Rights, the Act of Settlement and the Parliament Acts) and unwritten conventions (including the fact that the House of Lords does not oppose legislation from the House of Commons if it was part of the government’s manifesto).
The Important Debates
Has the absence of a written constitution allowed the UK Executive to become too powerful?
It can be argued that for most of the twentieth century there was an unofficial understanding between members of the political establishment that the government of the day would not tinker with constitutional arrangements for short-term or self-interested reasons: changes to the Constitution would only be made after a period of consultation and with broad cross-party support. This consensus has been eroded over the last thirty years.
In contrast to their predecessors neither Thatcher nor Blair – both iconoclastic leaders with large parliamentary majorities – felt themselves constrained by precedent or evolved practice. In contemporary Britain, the government of the day does not see the need to draw any distinction between changes to the constitution and changes in, for example, health or education policy. The players in the political game can change the rules of the game itself, and regularly do so, in a way which is not possible in other developed democracies.
Would an entrenched written constitution curtail parliamentary sovereignty?
Under our current system, Parliament – meaning in practice the government of the day – can pass any law it likes. There is no ‘higher law’ which limits the scope of new legislation.
If a written constitution were entrenched (either by requiring a ‘supermajority’ of MPs to agree to pass legislation or by introducing an external method of confirmation, such as a referendum) then the government’s power would be restricted. In this sense, parliamentary sovereignty might remain in principle without being fully operable in practise.
Would a written constitution give judges a political role?
An entrenched written constitution would require a procedure (independent of parliament and government) to determine what is ‘unconstitutional’.
In most other countries with written constitutions, those decisions are made by a Supreme Court. This raises issues of accountability as unelected judges are given the power to strike down laws which has been passed by elected politicians.
Something akin to this situation can already occur in the develoved regions, since the Supreme Court of the UK can overrule the governing assemblies with reference to the terms of devolution legislation.
How could a written constitution be effectively entrenched, so that a future government could not overturn it?
There are various ways that other countries entrench their constitutional provisions, for example by requiring a two-thirds parliamentary majority or a referendum to endorse constitutional amendments. [More+]
Some constitutional theorists suggest that a written constitution could not be effectively entrenched in Britain, because of the principle of parliamentary sovereignty. According to this principle, the power of future parliaments to repeal existing laws cannot be curtailed. However, other countries which previously had informal constitutions have successfully made the transition to a written constitution. Canada is one example[More+].
1215
English Barons force King John to sign the Magna Carta
1534
The first Act of Supremacy makes King Henry VIII the “supreme head” of the Church of England
1642
English Civil War Begins
1649
Cromwell creates the republican ‘Commonwealth of England’
1661
The monarchy is restored
1707
The Act of Union 1707 results in the political union of England and Scotland and the creation of the Kingdom of Great Britain
1801
The Act of Union 1800 results in the political union of Great Britain and Ireland and to the creation of the United Kingdom
1832
The Reform Act 1832 abolished 56 rotten boroughs, created 142 new urban constituencies. The percentage of the adult male population entitled to vote went up, from less than 10% to 14%
1867
The Second Reform Act 1867 decreased the property qualification in boroughs, resulting in any adult males with an address being allowed to vote. The percentage of the adult male population entitled to vote went up, from 14% to 32%
1872
The Ballot Act 1872 introduced the secret ballot
1883
The Corrupt and Illegal Practices Prevention Act 1883 criminalized attempts to bribe voters and standardized the amount that could be spent on election expenses
1884-5
The Representation of the People Act 1884 and the Redistribution of Seats Act 1885 (the Third Reform Act) collectively lead to an increase in the percentage of the adult male population entitled to vote, from 32% to 56%
1911
The Parliament Act abolished any power of the House of Lords to veto any public Bill introduced in the House of Commons other than a Bill containing any provision to extend the maximum duration of Parliament beyond five years
1918
The Representation of the People Act 1918 expanded the electorate to include all men over the age of 21 and all married women over the age of 30 who satisfied minimum property requirements. This lead to an increase in the total number of people entitled to vote, from 7 million to 21 million
1918
The Parliamentary Qualification of Women Act 1918 allowed women over 30 to stand for election to the House of Commons
1928
The Equal Franchise Act 1928 lowered the minimum age for women to vote from 30 to 21, making men and women equal in terms of suffrage for the first time and increasing the number of women entitle to vote from around 9 million to 15 million
1949
The Parliament Act 1949 enhanced the provisions of the 1911 act, reducing the time that the Lords could delay bills, from three sessions over two years to two sessions over one year.
1949
The Representation of the People Act 1949 abolished additional votes for graduates (university constituencies) and the owners of business premises
1969
The Representation of the People Act 1969 lowered the voting age from 21 to 18
1972
The European Communities Act 1972 allowed for the incorporation of European Community law into the domestic law of the United Kingdom
1975
Britain votes to stay in the EEC in the European Communities membership referendum
1998
The Human Rights Act 1998 incorporates the European convention on Human Rights into UK law
1998
The Scotland Act 1998 led to the establishment of the Scottish Parliament and Scottish Government, after the referendum held in 1997 which resoundingly approved devolution
1998
The Government of Wales Act 1998 led to the establishment of the National Assembly for Wales in 1999, after the referendum held in 1997 which narrowly approved devolution
1998
The Northern Ireland Act 1998 led to the establishment of the northern Ireland assembly, after the Good Friday agreement and the 1998 referendum on devolution
1999
The House of Lords Act 1999 abolished the hereditary peerage, leaving 92 hereditary peers on an interim basis
2000
The Freedom of Information Act 2000 created a public “right of access” to information held by public authorities
2005
The Constitutional Reform Act 2005 established a UK Supreme Court and dramatically reduced the formal powers of the Lord Chancellorship
2011
The Parliamentary Voting System and Constituencies Act 2011 which ordered a referendum on introducing the Alternative Vote system together with a commitment to reduce the number of sitting MPs from 650 to 600
2011
The European Union Act 2011 required that a referendum be held on amendments of the Treaty on European Union or the Treaty on the Functioning of the European Union
2011
The Fixed-Term Parliaments Act 2011 introduced fixed-term elections to the Westminster parliament to be held every five years, beginning in 2015
